The Public Eye: Federal government faces unusual lawsuit over tribal road project in Inyo County

Can the United States – a sovereign nation– be sued in the tribal court of a sovereign Indian nation?

A road dispute on the Fort Independence Paiute Indian reservation in the Inyo County alpine tundra around Highway 395 has triggered the rare test of sovereignty that’s being watched closely by legal experts across the country.

The Fort Independence Paiute Tribe is on 560 acres in the eastern Sierra Nevada, on what was once the Fort Independence military camp in the 1850s. The Paiutes have filed a $1.8 million suit in their tribal court against Pai of Kentucky Inc., a design and engineering firm. The suit alleges that PAIKI is guilty of faulty, unsafe design work on 3.7 miles of roads into and out of the tribe’s travel center and planned casino resort. The suit seeks to recover fees and lost revenue incurred when the Bureau of Indian Affairs shut down the road project in October 2012 because of what it called “massive safety problems.”

PAIKI has turned around and sued the U.S. Department of the Interior and the Bureau of Indian Affairs in a third-party complaint in the tribal court, claiming the BIA’s months-long shutdown of the project was unwarranted and therefore the U.S. government – not PAIKI – should be held liable for all lost revenue and expenses suffered by the tribe.

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Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University College of Law, said he’s not aware of any other case in which an agency of the United States government has been sued in tribal court. “It’s a very interesting, very important case,” he said. “I’m pretty sure the U.S. Department of Justice is going to fight this vigorously. My sense is Congress hasn’t waived the federal government’s sovereign immunity in tribal court for any reason.”

The Fort Independence case will test “the broader question of the authority of tribal courts to entertain claims against the U.S. government,” said UCLA Law School Vice Chancellor Carole Goldberg, who has set up tribal courts and teaches federal Indian law. Goldberg said this is the first such case she’s aware of “involving money.”

The U.S. Department of Justice, represented by the U.S. attorney’s office in Sacramento, said it has until January to answer the complaint. In the Eastern District of California, encompassing 43 federally recognized tribes – most of them small – the federal government has not had to defend itself against claims in tribal court, said Sylvia Quast, chief of the Defense Litigation Unit.

Should the tribal court judge, based in Sacramento, rule against the bureau, the federal government may claim sovereign immunity. Experts said the tribe would then likely have to seek redress in federal court.

The case involves a portion of the millions of dollars in Federal Highway Administration funds from gasoline taxes earmarked for repairs on roads in Indian country. If left unrepaired, these rough, remote roads can cause fatal crashes and make it difficult for tribal members to escape wildfires, according to the BIA.

The BIA’s Pacific Region, which has jurisdiction over approximately 630 miles of roads serving California’s 105 federal recognized tribes, has only enough money to keep 18 percent of the roads and bridges in California Indian country “in acceptable condition,” said Dale Risling, deputy regional director of Indian services. The lack of funds “leaves many of our roads in unsafe condition,” Risling said.

Ever since the Gold Rush era, the federal government has promised to build and maintain roads in Indian country in exchange for millions of acres of land, “and they never did,” Goldberg said. The Fort Independence case is “a big deal because the federal government owns the (reservation) land in trust for the tribes, so maintaining roads has been an important part of the service the BIA provides as a trustee.”

This year, the BIA has allocated $21.9 million to repair roads in California Indian country, said regional road engineer Steve Wilkie. Nationwide, $450 million is earmarked for 564 federal recognized tribes based on a complicated mathematical formula taking into account size of tribes and road traffic, Wilkie said. “We are conducting a safety audit of all reservations in the state ... we’ve argued for a long time the formula is inherently unfair because we have small, isolated tribes that don’t have the physical attributes to compete well.”

Fort Independence consists of 150 members, about 90 of whom live on the reservation, said the tribe’s Sacramento-based attorney, Jack Duran. The tribe currently has a travel center with a gas station and 80 slot machines and plans to expand, Duran said. The tribe has sued PAIKI for cost overruns and other alleged design flaws that the tribe says didn’t provide a safe entrance and exit. Duran said. “It’s a very large public safety issue because this concerned the ingress and egress to the tribe’s reservation off a main highway,” Duran said. “It’s kind of like Death Valley, and is susceptible to scrub brush fires.”

PAIKI’s complaint alleges that the BIA, acting as the tribe’s administrator over the road design and construction, shut down the new intersection “without a reasonable or good faith basis.” The company is asking for legal fees and alleges that the BIA “contributed, in whole or in part, to the injuries and damages allegedly sustained” by the Fort Independence Tribe.

Should the BIA be held partly liable, it could open the door for similar lawsuits in tribal court filed by other California tribes doing road work under the aegis of the BIA.